Enlisted Members

Enlisted MembersAccused may not be tried by a panel that includes enlisted members unless he makes such a request. Article 25 requires requests for enlisted court members to be made orally on the record or in writing.

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1. Old viewUnited States v. Hood, 37 M.J. 784 (A.C.M.R. 1993). At Article 39(a) session, accused deferred decision forum selection. Court convened with officer and enlisted members detailed and present. Nothing in the record, oral or written, indicated the accused elected trial with enlisted members. Court found this error to be jurisdictional under RCM 903(b). Findings and sentence set aside. See also United
States v. Smith
, 41 M.J. 817 (N-M. Ct. Crim. App. 1995) (accused originally requested officer members and then pleaded guilty with replacement counsel before military judge alone; findings upheld, remanded for sentencing).

2. Current view – Doctrine of Substantial ComplianceUnited States v. Alexander, 61
M.J. 266 (C.A.A.F. 2005). Military judge advised the accused of his forum selection
rights, which the accused requested to defer. During a later proceeding, the military
judge stated that he was told an enlisted panel would be hearing the case and defense did
not object to the statement. The accused, however, failed to state in writing or on the
record his request for enlisted members in violation of Article 25, UCMJ and RCM
903(b)(1). The CAAF held that the error in the accused failing to personally select forum
on the record is a procedural, as opposed to jurisdictional, issue. The court stated, “[the] right being addressed and protected in Article 25 is the right of an accused
servicemember to select the forum[,] . . . [t]he underlying right is one of forum selection,
not the ministerial nature of its recording.” The CAAF held that the record reflected that
the accused selected court-martial by panel members and the accused failed to show that
the error in recording his forum selection resulted in any prejudice.

a. United States v. Morgan, 57 M.J. 119 (C.A.A.F. 2002) (military judge erred
by not obtaining on record defendant’s personal request for enlisted members to
serve on court-martial, but error was not jurisdictional, and under circumstances,
it did not materially prejudice substantial rights of defendant).

b. United States v. Townes, 52 M.J. 275 (C.A.A.F. 2000) (military judge had
duty to obtain personal election from accused regarding the forum’s composition,
but where no coercion was alleged, the error did not materially prejudice the
accused’s substantial rights).

c. United States v. Andreozzi, 60 M.J. 727 (A. Ct. Crim. App. 2004). Accused
failed to state in writing or on the record his request for enlisted members in
violation of Article 25, UCMJ and RCM 903(b)(1). ACCA ordered two DuBay
hearings to determine if the accused personally selected trial by one-third enlisted
members. ACCA held, under the totality of the circumstances, that the accused
personally elected an enlisted panel. These relevant circumstances included: the
military judge telling the accused his forum rights, the defense counsel
submitting trial by enlisted members paperwork to the military judge, the defense
counsel’s testimony that his SOP was to discuss and explain forum rights to the
accused and to follow the accused’s wishes, the accused’s presence in the
courtroom when the panel was assembled and voir dired, and the accused’s
active participation in his own defense. ACCA stated “[b]ecause there was
substantial compliance with Article 25, UCMJ,UCMJ (2015) the failure to comply with the
procedural requirements of Article 25, UCMJ, did not materially prejudice [the
accused’s] substantial rights.”

d. United States v. Follord, No. 20020350 (A. Ct. Crim. App. Feb. 15, 2005)
(unpub). The accused, a CW2, did not make a knowing and voluntary waiver of
his statutory right to trial by five officer members because of the following
errors: (1) his executed PTA erroneously listed one of his three forum options as
a trial by one-third enlisted, (2) his request for military judge alone stated that
any trial composed of officers would be “not of his unit,” and (3) military judge
advised the accused that if he requested officer members at his general court-
martial that the panel must comprise “at least three members.” The court stated
the host of errors “constitutes a lack of substantial compliance with Article 16,
UCMJ.” Findings and sentence set aside.


5. Rejecting request for enlisted membersUnited States v. Summerset, 37 M.J. 695
(A.C.M.R. 1993). Military judge abused his discretion when he denied as untimely
accused’s request for enlisted members made four days prior to trial. He made no
findings of fact regarding unnecessary expense, unacceptable delay, or significant
inconvenience. See RCM 903(a)(1) and (e).

6. At least one-third enlisted. Failure to assemble court of at least one-third enlisted
members is jurisdictional error necessitating setting aside panel-adjudged sentence.
United States v. Craven, 2004 CCA LEXIS 19 (A.F. Ct. Crim. App. Jan 21, 2004)
(unpub.) (following challenges for cause and peremptory strikes, enlisted members
constituted only 28.6 percent (five officer and two enlisted) of membership of court).

7. Same unit. Article 25(c)(1), UCMJ. Enlisted members should not be from the same
company-sized “unit” as the accused.

a. Same unit” is not a jurisdictional defect. United States v. Wilson, 21 M.J.
193 (C.M.A. 1986). Failure to object waives the issue. United States v. Zengel,
32 M.J. 642 (C.G.C.M.R. 1991), review denied, 33 M.J. 185 (C.M.A. 1991).

b. Cf. United States v. Milam, 33 M.J. 1020 (A.C.M.R. 1991). Two enlisted
members of the panel were assigned to the same company-sized unit as accused.
A.C.M.R. holds (with defense challenge for cause) that the two members were
statutorily ineligible to sit under the language of Article 25(c), UCMJ. Also
relevant is the language of RCM 912(f)(1)(A). Findings and sentence set aside.

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